Judicial Independence in Japan

This article explores the concept of judicial independence in Japan, specifically from the perspective of foreign investors. It examines the Japanese judicial system, judicial proceedings, criticism of the judiciary, important case laws, and defects in the judiciary. The article also discusses potential improvements that can be made.

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JUDICIAL INDEPENDENCE IN
JAPAN
THEME (C)

INDEPENDENCE OF JUDICIARY IN JAPAN
“A Critical study of the Japanese Judiciary from the perspective
Of foreign investors “
Theme (c) “from the perspective of companies that were established in Japan by
foreign investors to conduct business activities in Japan, Is there judicial Independence in
Japan? If your answer is yes explain why you think so. If your answer is No or only
partially yes, explain why you think so. In either case, also discuss and analyze any
improvement that you consider can be made.”
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INDEPENDENCE OF JUDICIARY IN JAPAN
Table of Contents
Introduction.................................................................................................................................................3
Overview of Japanese Constitution.............................................................................................................3
Judicial independence In Japan...................................................................................................................4
Japanese judicial system..........................................................................................................................4
Judicial proceedings................................................................................................................................5
Criticism of judiciary in Japan.....................................................................................................................5
Important cases laws....................................................................................................................................6
Defects in the Judiciary of Japan.................................................................................................................6
Conclusion...................................................................................................................................................7
Bibliography................................................................................................................................................8
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INDEPENDENCE OF JUDICIARY IN JAPAN
INDEPENDENCE OF JUDICIARY IN JAPAN
“All the rights secured to the citizen under the constitution worth nothing, a mere rumor except
guaranteed to them by an independent and virtuous Judiciary.”
Andrew Jackson
Introduction
Judiciary is that authority in a nation that deals with law and legal systems and also watches that
the laws and ordinances passed by the legislature are executed properly by the people or not are
maintained and watched after by the judiciary. It includes courts, judges and attorney generals. It
is that branch of government in which the judicial power is vest.
Judicial Independence is regarded as an important rule of law. It is a center that safeguards
human right. It is that ability of the courts and judges to perform their duties freely without any
influence or control by other private or governmental bodies. Judicial Independence is that
independence that is possessed by the court and the judges. The principle of the Independent
judiciary requires the judiciary to ensure the judicial proceedings to be conducted and a fair way
and along with the rights of children must be respected.1
Judiciary is different from other branches of government and a very important idea of separation
of powers. Different nations deal with a different kind of judicial system through various
different means 2of judges’ selection or selecting. Judicial independence can be promoted by
granting life tenure to the judges which frees them to decide cases and make rulings according to
the rule of law and judicial discretion even if these decisions are politically unpopular or opposed
by powerful interests.” Thus in this study, I will write while supporting the given topic “in Japan,
is there judicial independence in Japan? If your answer is “Yes”, explain why you think so. If
your answer is “No” or only partially “Yes”, explain why you think so. In either case, also
discuss and analyze any improvement that you consider can be made.”
11 The World Trade Organization on Governance by Judiciary; Robert Howse; https://doi.org/10.1093/ejil/chw011;
22April 2016.
2()Measuring Control of Corruption by a new Index of Public integrity; Alina Mungiu-Pippidi;September 2016;
Volume 22
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INDEPENDENCE OF JUDICIARY IN JAPAN
Overview of Japanese Constitution
It was propounded on third of November 1946 and came into force on third of May 1947, the
current version is the revised form of the old Meiji constitution in the imperial wide after the
nationwide election. It can be interpreted by two approaches amongst them one is textualist and
the other is originalist. There are a lot of variations in these approaches but still it is impractical
to adopt the extreme approach of a single side. All judges and attorneys are although free to
exercise their functions but still they are bound by the constitution and the laws enacted under it.
The constitution contains approximately five thousand words and 103 articles divided into 11
chapters.
Judicial independence In Japan
In Japanese constitution independence of judiciary means the freeing of both judges and
judiciary from all the political, executive and legislative powers. Judicial authority here is fragile
and protects the judges’ position free exercise of power helps the judges to shape their legal
minds while hearing cases. Japan is known for being one of the countries having the lowest
crime rates in the world. Judiciary in Japan is totally an independent body and has got a separate
place and position in the constitution of Japan. Article 76 to article 82 contains the provisions of
the judiciary in the constitution. The whole of judicial power is imposed on the Supreme Court
and the other ones those imposed by the law and no other authority such as the tribunal and the
executing agency has the power to pass final judicial powers it is the court of last resort for
determining the constitutionality of any law, order, regulations and also the official acts so made
by the emperor. Judges practicing here shall be independent to exercise their powers and can be
held bound to only the Constitution and the law.3
The Supreme Court is comprised of a chief justice and the fourteen other judges. The
constitution tends to provide a right of speedy trial by a trending or an impartial tribunal. The
Jury does not have a right to trial. Judicial warrants are required to be issued by the judges for
each and every search warrants and seizure. It accepts compulsory jurisdiction of international
justice court but with reservation.
3 Examining the Development of Judicial Independence; Rebecca Reid; July 8, 2016;
https://doi.org/10.1177/1065912916656277
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INDEPENDENCE OF JUDICIARY IN JAPAN
Removal of judges cannot be done unless by the public review, Bungen-saiban that is a
disciplinary action against the judges and impeachment i.e. declared physically or mentally
declared as incapable of performing the official duties. Supreme court judges are appointed by
the people firstly by electing the members of house of representatives and then by their
appointments elections are held in lapse of 10 years every time in the same manner and the
judges of inferior courts are appointed by cabinets from the list of members selected by the
Supreme court and all those judges shall hold the office for a term of ten years with
reappointment privileges provided. In the general courts the judges retires at the age of 65 years
while they work up to the age of 70n years in the Supreme Court.4
Japanese judicial system
There are five types of Ordinary courts in Japan and those are as follows
Summary courts handles civil law suits not exceeding the claim of 1.4 million and also
conciliation cases along with demands for payments. They also deals with criminal cases relating
to minors and lawful residing in Japans.
Family courts deals with suits relating to personal conflicts, family affairs, juvenile along with
other similar cases.
District courts handles all types of civil, criminal as well as administrative cases also deals with
the appeals came from the decisions of the summary courts.
High courts mainly deals with appeals i.e. the appeals filed against the judgment order of the
lower courts.
Supreme Court is the considered as the highest and the final court to tackle with all the appeals
rendered by the decisions of the High courts. It is comprised of a chief justice along with 14
justices and a huge bench of 15 judicial officers and three small benches having 5 members each.
The cases here are firstly assigned to one of the 3 small benches and those cases which involves
the questions of constitution are shifted or passed to the bigger branch for the evaluation and
adjudication.
4 Judicial Independence, Judges ‘Incentives and Efficiency; Alessandro Melxame; 2015.06.10;
DOI:https//doi.org/10.1515/rle-2015-0024
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INDEPENDENCE OF JUDICIARY IN JAPAN
Judicial proceedings
Courts in Japan deals with the following cases namely
Civil and Administrative cases here civil cases are basically the legal disputes arose between the
individuals examples of such cases are disputes over lending money, real property leases etc.
Thus civil lawsuits are the one in which individuals’ rights and obligations are determined by the
courts. When an individual is not satisfied with the orders of the central or the state government
then he she may go to the court as the administrative legislation and also file an appeal in the
administrative agency, which is known as administrative cases for example demand for
cancellation of taxes imposed by the tax authorities and also nullification of an election.
Family affair cases are the disputes raised in a family, for example cancelation of marriages,
divorces, custody of children, guardianship of adults and inheritance. Japan for solving the
disputes between the families and the internal affairs have built a vast network of family courts.
Criminal Courts include criminal procedure, saiban-in system (here the 6 lay judges along with 3
professional ones sit and examine cases in District court of serious nature such as crime
punishable with death penalty and life imprisonment and also international criminal act
punishable with death penalty of a victim subjected to examination by the panel.) and retrial
where the accused has a right to file a retrial after an order of his being guilty or passed and new
evidences are found which may prove him innocent.5
Juvenile Cases are those cases which involve juveniles of 14 to 19 years of age committing
crimes or have violated criminal laws or ordinances but would not be considered as because of
their young age. They are made to realize the wrong done by them and these cases are referred to
the family courts after the due inquiry is made by the police or the prosecutors in Japan.6
Criticism of judiciary in Japan
After being arrested the person here is left unheard for any charges for about 23 days and cannot
even meet his lawyer in this course of time neither would be interrogated. This is totally inhuman
5The New Judiciary, Effects and expansion; Kate Malleson; 5 December2016; DOI:
https://doi.org/10.4324/9781315238111.
6Economic growth and Judicial Independence; Lars P. Feld; September 2003; https://doi.org/10.1016/50176-
2680(03)00017-x
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INDEPENDENCE OF JUDICIARY IN JAPAN
where a person arrested is kept in a prison for so many days and without having information
about what mistakes he has committed and how much punishment he may get for it.
Police and prosecutors are well known for their wrongful convictions here and force the people
to confess something which they have not even done. It is common in Japan to arrest a person for
smaller or the minor crimes and then force them in confessing to a more major crimes. Forces
used by the police officer in charge is totally insane and against the law.
Confession is considered as the best form of evidence in Japan and those are often received by
psychological intimidation, shaming and also the methods of sleep deprivations physical abuse
deprive of food, water and denial to use of toilets etc. One must not be forced to confess the
wrong not done by them and torture which is undesirable must not be practiced.
It has not used other tools such as plea of bargaining and wiretapping as the other countries have,
so it enforce on confession as its main tool. One of the biggest criticism is that here the inmates
usually remains for years and sometimes till death. Inmates are not even informed of the last date
so they also suffer from uncertainty of not knowing their executing date which may lead to
intense and prolonged stress and thus result in death or poor mental health of the inmates.
Important cases laws
Mapplethorpe Case- judgment date 19 February 2008, case no.2003 no.157 here the court found
that a collection of Mapplethorpe photographs that included the pictures of male genitalia was
not obscene and its decision was for the first time believed that the lower court was overruled by
the top one on obscenity.7
Overseas Hibakusha case decided on 1st November 2007, stated that the court found the reasons
for Governments refusal to provide healthcare benefits to hibakusha living in abroad was illegal.
It was the 1st time when court declared the government order as illegal and concluded by asking
the government to pay compensation for the damages.8
Bull Dog Sauce case was determined on august 7 2007 where the discriminatory treatment of
some shareholders designed to prevent hostile takeover on a company does not necessarily
violates the equality of principle of shareholders in Japanese statute .Such decisions must be
7Judicial Independence in International Tribunals; Eric A Posner and John C. Yoo; January 2005;
8Judicial Independence and Political Uncertainty; Olof Larsson and Daniel Naurin;
https://doi.org/10.1017/50020818316000047; 2016
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INDEPENDENCE OF JUDICIARY IN JAPAN
made by the shareholders in the interest of the company and management can’t make its own to
protect itself.9
Defects in the Judiciary of Japan
The Judiciary can be characterized as a big failure in Japan for more than one reason which are
as follows
The supreme Court looks at the actions of the government so rarely that the judicial enforcement
of constitutional limits on government power exist more in theory form and less on the practical
ones.
Over the course of its entire existence i.e. over six decades the Supreme Court of Japan has
struck down only 8 laws on constitutional ground so has a reputation of “the most conservative
and cautious in the world” in respect of its judicial review. In the contrast The German
Bundesverfassungsgericht which is slightly a younger court as compared to the Japanese one has
already made over 600 laws and the US Supreme Court which is similar in size to the Japan one
has struck down around 900 laws in the same time frame.
The worst part is that the Supreme Court of Japan has failed to comply the relations between the
Government and the Courts rulings.
Some accounts represent the Judiciary as an ideological arena or the servant of long ruling over
conservative government.
Thus, one can wrap-up this conversation by mentioning that Judiciary is trying hard to overcome
its dependence on bureaucracy by the various resources and number of new reforms that might
have a liberating effects on the Judicial system of japan. Thus by overlooking all the negative
points and focusing on the positive ones one can strongly support the fact that the judiciary of
Japan is raising towards independence in a very speedy manner with a really very good speed.
Therefore my perspective that the judiciary of Japan is an independent one is absolutely logical
and worthy.
Conclusion
9Examining the Development of Judicial Independence; Kirk A. Randazzo;8 July 2016;
https://doi.org/10.11771065912916656277
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INDEPENDENCE OF JUDICIARY IN JAPAN
Therefore after looking at all the aspects of the Japans judiciary, it would not be wrong to say
that yes there is judicial independence in Japan as it has got a very important place in the
constitution which is free from all the powers of the executive and the legislative. In japan most
of the common laws were gained after the Second World War and today the civil laws are still
the dominating source here. The doctrine of Administrative Guidance still have effectively
circumvent the mandate of judicial supremacy. The balance of the entire legal system appears to
be very well established here. Therefore it feels safe while saying that in the years ahead some of
the common laws will always remain the crucial part of the Japanese legal system. Independence
of judiciary is always studied in the light of constitutional provisions, which states that judicature
is no less important than other organs of the State. It helps to keep all the bodies of the state in a
limit and also prevents encroachment on each other’s sphere and thus it prevents chaos and
works for peace, prosperity and communal harmony.
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INDEPENDENCE OF JUDICIARY IN JAPAN
Bibliography
 Tsuji, Y. (2016). judicial independence in japan. Article 9 and the History of Japan's
Judiciary: Examining Its Likeness to American and German Courts.
 Law, D. S. (2017). judicial independence in japan. The Anatomy of a Conservative
Court:
 Judicial Review in Japan.
 Tsuji, Y. (2017). judicial independence in japan. Constitutional Law Court in Japan.
 Drew A.Linzer, J. K. (2015). Judicial independence of japan. A Global Measure of
Judicial Independence, 1948–2012.
 Voigt, J. G. (2018). Judicial independence in japan. Judicial independence in the EU: a
puzzle.
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